What is the Best Evidence Rule?

The so-called “Best Evidence Rule” is an old rule which provides that if a party is trying to prove the contents of a document, the document should be introduced into evidence unless there is a good reason to not enter the document into evidence.

The term “Best Evidence Rule” is actually misleading and Federal Rule of Evidence 1002 now calls it “Requirement of the Original” which is much more helpful.

Let’s say a party is testifying about the contents of a contract to try and prove that the opposing party breached the contract. The party might want to testify that, “Article 2 of the Contract says ‘David promises to sell his red car.’ But David never sold the car. So I’m suing him.”

The Requirement of the Original rule or Original Document rule tells us that instead of just testifying about what Article 2 of the contract said, we should enter the contract into evidence. Unless there is proof of fabrication, a photocopy of the contract should be fine, too.

Don’t Get Tricked

The rule only applies if someone is trying to prove the contents of a document. For example, let’s say you wanted to testify that you bought milk yesterday. That’s fine. You don’t have to enter into evidence a receipt for the milk.

On the other hand, if you testify that the milk receipt stated that “If you buy one quart of milk you get a second quart of milk free” that will probably trigger the rule. In that case you should enter the receipt into evidence.

Let’s say Patty wants to testify that Fred sent her a photograph of Fred breaking a car window. If a lawyer asks Patty to testify about what was in the photograph, the Requirement of the Original rule should apply. We should enter the photograph into evidence.

In some cases it’s just impossible to enter the original document. Let’s say a party lost his receipt or the photograph is gone. Now the rule will require the party to explain why he can’t enter the original into evidence and the court might choose to accept the secondary evidence instead.

Please look at Federal Rule of Evidence1004 for circumstances where a court will likely admit secondary evidence. Among other things, Rule 1004 provides that secondary evidence will be accepted if the original was lost or destroyed but not as a result of bad faith action by the party that seeks to testify about its contents. Also, if the party that is in control of the document refuses to disclose it or if there is no way to obtain the document through judicial process a court is likely to admit the secondary evidence.

On an exam watch out for questions to a witness that ask, “What was in the document?” This likely indicates that the Requirement of the Original rule could apply.